SHIV MANGAL Vs. D.D.C.

JUDGEMENT

(1.) HEARD Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri Anoop Srivastav, for the petitioner and Sri D.C. Mukerjee, Senior Advocate assisted by Sri Anand Awasthi, for the contesting respondents. This writ petition has been filed against the orders of Consolidation Officer dated 20.5.2005 and Deputy Director of Consolidation dated 30.3.2011, passed in the title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

(2.) DISPUTE is in respect of the land recorded in basic consolidation year khata 89 of village Patkapur, tehsil Hasanganj, district Unnao, which was recorded in the name of Smt. Saraswati widow of Ram Swarup. Shiv Mangal (the petitioner) filed an objection (registered as Case No. 384/1528/12278 of 2004 -05) under section 9 -A(2) of the Act for recording his name over the land in dispute, on the basis of registered Will dated 7.4.1980 allegedly executed by Smt. Saraswati in his favour. Shiv Pal, brother of the petitioner filed another objection under section 9 -A(2) of the Act for recording the names of Shiv Pal, Sri Ram and Shiv Mangal sons of Ram Swarup, claiming inheritance under section 171 of U.P. Act No. 1 of 1951. Consolidation Officer, by an ex -parte order dated 20.9.2001, directed for recording the name of the petitioner over the land in dispute. Thereafter order dated 20.9.2001 was recalled on 25.5.2004 and the case was tired by Consolidation Officer. The petitioner filed will dated 7.4.1980 and examined himself and Chheda Lal, attesting witness of the Will. The respondents examined Babadeen, Sri Ram and Shiv Pal. The Consolidation Officer, by his order dated 20.5.2005 held that in the Will other sons were not mentioned nor any reason has been given to disinherit them. One of the attesting witness namely Shiv Pal has stated that the Will is a forged document and there was contradiction in the statement of the other attesting witness as such due execution of the Will was not proved. On these findings the Consolidation Officer by order dated 20.5.2005 directed for recording the names of Sri Ram and Shiv Mangal as the heirs of Smt. Saraswati.

(3.) SRI Ram (respondent -4) filed a revision (registered as Revision No. 505) from the aforesaid order. Deputy Director of Consolidation, by order dated 30.3.2011 held that Shiv Pal, one of the attesting witness of the Will had denied execution of the Will. No reason has been assigned for executing Will in favour of one son only although the deceased was having three sons. The Will is surrounded with suspicious circumstances and the propounder could not remove the suspicious circumstances. On these findings the revision was allowed and order of Settlement Officer Consolidation was set aside and order of Consolidation Officer was affirmed. Hence this writ petition has been filed.